Judge Appoints Special Master, Temporarily Bars FBI/DOJ Review Or Use Of Records Seized in Mar-a-Lago Raid
“The Court hereby authorizes the appointment of a special master to review the seized property for personal items and documents and potentially privileged material subject to claims of attorneyclient and/or executive privilege…. [and] also temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order.”
Federal Judge Aileen M. Cannon has granted Donald Trump’s Motion for Judicial Oversight of the FBI/DOJ handling of records and other things seized during the Mar-a-Lago Raid.
The Order entered today provides, in relevant part (emphasis added):
Pursuant to the Court’s equitable jurisdiction and inherent supervisory authority, and mindful of the need to ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented, Plaintiff’s Motion [ECF No. 1] is GRANTED IN PART. The Court hereby authorizes the appointment of a special master to review the seized property for personal items and documents and potentially privileged material subject to claims of attorneyclient and/or executive privilege. Furthermore, in natural conjunction with that appointment, and consistent with the value and sequence of special master procedures, the Court also temporarily enjoins the Government from reviewing and using the seized materials for investigative purposes pending completion of the special master’s review or further Court order. This Order shall not impede the classification review and/or intelligence assessment by the Office of the Director of National Intelligence (“ODNI”) as described in the Government’s Notice of Receipt of Preliminary Order [ECF No. 31 p. 2].
Expect an emergency appeal.
MORE TO FOLLOW
From the Order, Team Trump promptly requested DOJ agree to a Special Master. But as I’ve pointed out before, Team Trump took almost two weeks to file its court motion.
Shortly after the search of the residence, Plaintiff’s counsel spoke with the Government and requested the following: a copy of the affidavit in support of the warrant; the Government’s consent to the appointment of a special master “to protect the integrity of privileged documents”; a detailed list of what was taken from the residence and from where exactly; and an opportunity to inspect the seized property [ECF No. 1 pp. 8–9]. The Government denied those requests [ECF No. 1 p. 9].5
5 The exact date of that conversation is unclear, but all agree that the conversation took place soon after the search. Plaintiff references August 11, 2022, in the Motion, three days after the search (and eleven days prior to the filing of the Motion). The Government does not offer a different view in its Response or otherwise challenge the substance of the rejected requests. Counsel for the Government stated during the hearing that Plaintiff’s request for a special master was rejected on August 9, 2022, the morning after the search.
The leak of information also came up. This part of the oral argument – for which there is no public audio – was not known to me, but is important. How can the government claim secrecy when it’s leaking to the press:
11 When asked about the dissemination to the media of information relative to the contents of the seized records, Government’s counsel stated that he had no knowledge of any leaks stemming from his team but candidly acknowledged the unfortunate existence of leaks to the press.
Here is the context in which leaks were considered by the Judge (emphasis added):
With respect to the first factor, the Court agrees with the Government that, at least based on the record to date, there has not been a compelling showing of callous disregard for Plaintiff’s constitutional rights. This factor cuts against the exercise of equitable jurisdiction.
The second factor—whether the movant has an individual interest in and need for the seized property—weighs in favor of entertaining Plaintiff’s requests. According to the Privilege Review Team’s Report, the seized materials include medical documents, correspondence related to taxes, and accounting information [ECF No. 40-2; see also ECF No. 48 p. 18 (conceding that Plaintiff “may have a property interest in his personal effects”)]. The Government also has acknowledged that it seized some “[p]ersonal effects without evidentiary value” and, by its own estimation, upwards of 500 pages of material potentially subject to attorney-client privilege [ECF No. 48 p. 16; ECF No. 40 p. 2]. Thus, based on the volume and nature of the seized material, the Court is satisfied that Plaintiff has an interest in and need for at least a portion of it, even if the underlying subsidiary detail as to each item cannot reasonably be determined at this time based on the information provided by the Government to date.
The same reasoning contributes to the Court’s determination that the third factor—risk of irreparable injury—likewise supports the exercise of jurisdiction. In addition to being deprived of potentially significant personal documents, which alone creates a real harm, Plaintiff faces an unquantifiable potential harm by way of improper disclosure of sensitive information to the public.11
Further, Plaintiff is at risk of suffering injury from the Government’s retention and potential use of privileged materials in the course of a process that, thus far, has been closed off to Plaintiff and that has raised at least some concerns as to its efficacy, even if inadvertently so. See infra Discussion III. Finally, Plaintiff has claimed injury from the threat of future prosecution and the serious, often indelible stigma associated therewith…. As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own. A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude.
The Judge returned to the issue of leaks in her summary (emphasis added):
Hence, the Court takes into account the undeniably unprecedented nature of the search of a former President’s residence; Plaintiff’s inability to examine the seized materials in formulating his arguments to date; Plaintiff’s stated reliance on the customary cooperation between former and incumbent administrations regarding the ownership and exchange of documents; the power imbalance between the parties; the importance of maintaining institutional trust; and the interest in ensuring the integrity of an orderly process amidst swirling allegations of bias and media leaks.
As to the need for a Special Master, the Court found that the “Privilege Review” team at DOJ was insufficient, and there had been at least two breaches of privilege:
As reflected in the Privilege Review Team’s Report, the Investigative Team already has been exposed to potentially privileged material. Without delving into specifics, the Privilege Review Team’s Report references at least two instances in which members of the Investigative Team were exposed to material that was then delivered to the Privilege Review Team and, following another review, designated as potentially privileged material [ECF No. 40 p. 6]. Those instances alone, even if entirely inadvertent, yield questions about the adequacy of the filter review process.13
13 In explaining these incidents at the hearing, counsel from the Privilege Review Team characterized them as examples of the filter process working. The Court is not so sure. These instances certainly are demonstrative of integrity on the part of the Investigative Team members who returned the potentially privileged material. But they also indicate that, on more than one occasion, the Privilege Review Team’s initial screening failed to identify potentially privileged material. The Government’s other explanation—that these instances were the result of adopting an overinclusive view of potentially privileged material out of an abundance of caution—does not satisfy the Court either. Even accepting the Government’s untested premise, the use of a broad standard for potentially privileged material does not explain how qualifying material ended up in the hands of the Investigative Team. Perhaps most concerning, the Filter Review Team’s Report does not indicate that any steps were taken after these instances of exposure to wall off the two tainted members of the Investigation Team [see ECF No. 40]. In sum, without drawing inferences, there is a basis on this record to question how materials passed through the screening process, further underscoring the importance of procedural safeguards and an additional layer of review….
REACTIONS – THE GOOD, THE BAD, AND THE UGLY (MOSTLY THE UGLY)
On-the-record statement on today’s Court Order appointing Special Master to review items seized by FBI at Mar-a-Lago:
“The United States is examining the opinion and will consider appropriate next steps in the ongoing litigation.” Justice Department Spokesman Anthony Coley— Catherine Herridge (@CBS_Herridge) September 5, 2022
BREAKING: Judge Cannon has ruled—wrongly— that a special master should be appointed to review the documents obtained from Mar-a-Lago for executive and other privileges. Because this includes an injunction vs investigative use, DOJ can and should appeal.
More to follow. pic.twitter.com/ZnK8SRtQld
— Norm Eisen (@NormEisen) September 5, 2022
The usual suspects immediately panned Trump's request for a "Special Master" as a frivolous, risible PR ploy. Today the judge granted the request pic.twitter.com/mJg4IR6NRQ
— Michael Tracey (@mtracey) September 5, 2022
Trump being granted a Special Master to review the Top Secret Classified Documents, that he stole, will just slow things down. It will not protect him from his Crimes. He will be Indicted.
— Rob Reiner (@robreiner) September 5, 2022
"We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for." https://t.co/4jzxBV67Pa
— William A. Jacobson (@wajacobson) September 5, 2022
Trump-appointed Judge Aileen Cannon, who just ruled in favor of Trump, once forced someone to testify in person while they had COVID, per @mjs_DC: https://t.co/ZdzYEfbwvW
— No Lie with Brian Tyler Cohen (@NoLieWithBTC) September 5, 2022
So when Democrats trash Judge Cannon as a "Trump judge," ask them why 12 of the 33 Senate Democrats (36%) who decided to show up to work that day voted to confirm Judge Cannon's nomination to a lifetime-appointed federal judgeship.https://t.co/Vj8Pf77KCf
— 🇺🇸 Mike Davis 🇺🇸 (@mrddmia) September 5, 2022
what kind of shithole system of justice allows a confessed classified document thief to appoint his very own rent-a-judge to rule in his favor
— Jeff Tiedrich (@itsJeffTiedrich) September 5, 2022
DOJ must stop any forensic testing (fingerprints/DNA) that may be underway regarding the stolen documents. I hope the DOJ chooses to appeal this decision rather than just let it lie. #JusticeMatters video dropping this afternoon.
— Glenn Kirschner (@glennkirschner2) September 5, 2022
Regime Twitter is having a very bad day. Today's order isn't even a big deal. It merely means that an independent person will review what was seized–which is totally reasonable and should've happened from the start. Why are they so upset? pic.twitter.com/PqW6FhxORh
— Hans Mahncke (@HansMahncke) September 5, 2022
“BEST” MELTDOWN OF DAY
.@ElieNYC on a Trump-appointed judge approving the former president's 'special master' request: "When you allow Trump judges to infect the system, these are the kinds of decisions you get." #TheReidOut pic.twitter.com/U6UZLc8xts
— The ReidOut (@thereidout) September 5, 2022
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Comments
It’s a start. Now let’s see the house of cards constructed by the DoJ collapse.
If history is any guide, that is exactly what wil happen, and the Swamp will shrug it off and continue as usual.
The FBI confiscated Trump’s medical information and Tax Forms. WTF?
No WTF. They intend to leak it when they think it politically advantageous. Most likely they’ll be lying about what they have, but since they have control of the evidence Trump can’t show the original documents to prove they’re lying.
True. All they have to do is send copies over to certain Democrat Senators and it is all over MSNBC the next day.
The democrat Lawfare Scheme Team are the Fruitcakes of the Poisonous Tree.
I like how, to the left, no one is ever merely on the right. It’s far right, MAGA Republicans, extremist, staunch conservative, etc. These adjectives are never applied to leftists (although you don’t need to because every leftist is a goofball.) I’ve never seen the word “staunch” used ever in my life except to amplify a conservative.
Bitter, bitter people.
Actually, most Conservatives simply believe in the wisdom of The Founding Fathers, and also the Bill of Rights and The Constitution without far looney left changes.
We ARE the Good
Guys, so they have to smear us at every turn. If all voting people were rational, the whole country would vote Conservative!
After all, it was this foundation that have had people from all over the world want to live in such a free country. Why would anyone want to change this? Because there’s a group of extremely greedy and power hungry leeches that have a sizeable investment in gaining power to run the entire planet while they live like Midas Kings.
Very well said, jmaquis! Let me note one other angle of the conservative vs. progressive debate. Not only is the Constitution an inspired and wonderful work, but it is also the basis on which any legitimate government in this nation must rest. In other word, a government is not a legitimate government to the extent it creates or enforces laws that are inconsistent with the Constitution. That is because, at our nation’s birth, The People, through their elected state legislatures, accepted a federal government only on the condition that it adhere to the limitations imposed on it by the Constitution.
“Hello? This is Special Master Smith. Could you put me through to FBI Director Barney Fife’s Office please? He’s not available? Then transfer me over the the Keystone Kops division. I need to talk with the lead senior agent heading the Mar-a-Lago project. Yes, I’ll hold.”
“for investigative purposes”
So leaking documents to the press is still okay, then.
They will do it with impunity anyway…
In my opinion, it doesn’t matter that the DOJ/FBI has had two weeks to review (copy?) these documents. They had their copies or enough other documentation. They already knew what they would find and that’s all they found. It’s what they were looking for and DIDN’T find that is driving them crazy. Now a judge got to look at the search warrant and orders the affidavits unsealed and based on that, stopped the DOJ/FBI in their tracks until a Special Master reviews them.
If they didn’t find what they were looking for, then why are they so desperate to keept the Special Master from looking at them? Could it be because they reveal something about the DOJ/FBI that they don’t want known? What could that be? Hmmmm. Sorry, I’m out of ideas.
In my non-lawyer opinion, I think what will be found is that the warrant was treated as a General Warrant, which is illegal under the Fourth amendment. It is obvious from the lists that they took everything under the sun. I will leave it to Millhouse to tell us if that would compromise use of anything taken.
Old and busted: We had to raid the Trump residence to recover nuclear secrets.
New and cool: Look at this nifty collection of clothes we collected.
The fact that it took NINE hours belies the claim that they were looking for something specific; they were tossing the place.
I mean, when you have to rifle Melania’s underwear and Baron’s room, you know they were just fishing with a grenade.
Agreed. They are acting crazy because they think Trump has some real dirt on them. The FBI people who led this raid are the same FBI people behind the Russian Collusion nonsense.
This stinks of desperation.
The amount of hysteria from the leftists about this is amazing (but not unpredictable). What could having an independent person do except guarantee that all rules are followed and all appropriate documents are in the hands of those that should have them.
Reminds me of the paroxysms that accompany voter ID. Maybe we should get a special master from a third world nation to oversee our elections…
There are all sorts of things the STASI may have found that could be leveraged to damage Trump’s 2024 campaign. For example, they allegedly grabbed medical and tax records, two things Trump religiously hid in 2016 and 2020. Leak it to Rachel MadCow (assuming the ratings-tanking tranny still has a show in 2024), and we learn all about how Trump has herpes and lost $500 million in 1992, or whatever.
I’m more worried about what the GOPe is going to be doing to help the Dems stop Trump. The Dems are doing a great job destroying and no one buys their Trump lies anymore so they are actually helping Trump these days. On the other hand, the GOPe is actively doing everything to block Trump’s endorsed candidates for November and I’m sure they have a plan to destroy them once elected. The end of this year is going to be a shit show as the a chunk of GOPe spends their last few weeks in office. And it won’t be directed at their friends across the aisle who praise them for reaching across the aisle to enable their Marxist victories.
Tax record and medical information on Trump have been sought by Democrats and their allies in the media since Trump took the escalator ride on June 2015. I expect this information will be leaked to the press during midterms and any 2024 Trump candidacy
I hope President Trump runs and wins. The karma will be epic, and the schadenfreude delicious!!!
Perhaps the documents they were looking for and didn’t find say something the FBI doesn’t want said, and perhaps someone like Durham has them.
On other sites liberals are frothing at the mouth explaining all the ways Judge Carter is legally wrong and how she’ll be reversed on appeal by tomorrow. Yeah, I don’t think so..
I think the magistrate judge who approved the search warrant is going to end up being sorry he did so.
“On other sites liberals are frothing at the mouth…”
So,, another day ending in “y?”
If recent history is any indication, nothing will happen to the magistrate who approved the search warrant.
Nothing has happened to the conspirators and insurrectionists, inside and outside the government, who created and used the Steele dossier to undermine and try to topple a sitting president.
So why would anything happen to this magistrate?
The Swamp — Dems and GOPe — protects anyone involved in the ongoing operation to Get Trump!
Special Master – My Concerns:
At this point the search warrant is overly broad, but not yet ruled over-broad by the Court; I hope the Special Master does not therefore feel obligated to rule that all sorts of extraneous matter be retained by the DOJ just because none have been ruled out yet by the Judge.
I hope the Special master is fully impartial, not a plant.
I hope that the original decisions of the “Taint Team” are officially compared to the Master’s findings so that we can learn how out of control the FBI and DOJ have been. That could accomplish the well deserved end of Taint(ed) Teams.
From Meathead :
“…It will not protect him from his Crimes. He will be Indicted.”
I’d pay good money never to read or hear anything from him again.
Just a fundraising idea for LI…
I agree. But I’m amazed at just how stupid has-beens like Reiner, Whoopi Goldberg, et al, are I wonder who ties their shoes. Trump can’t be indicted for his “crimes,” since the “crimes” he’s accused of are crimes no President can commit.
Any President has absolute authority to determine what is and isn’t classified information derived from the Consititution which designates the President as Commander in Chief. In fact, none of his subordinate executive branch officials have any authority to classify or declassify any information on their own. They’re not named in the Constitution. They can only have any authority to do anything if they derive it from the President. He delegates that authority to subordinate officials in an executive order by job title.
The President also determines what is and what isn’t classified national security information. The President also establishes declassification and downgrading procedures.
But those only apply to a President’s subordinates. Since the Constitution doesn’t establish classification/declassification procedures then a President can follow any damned procedure he wants including none at all. And no subordinate officers can overrule their boss. In fact, there’s a word for that; insubordination. Although I think the word mutiny applies better in this case.
But Trump didn’t dot an ‘i’ and cross a ‘t’ that the bureaucrats required so they could note in their records the documents had been declassified.
And no one is above the bureaucracy, or something.
So the Dems — and Liz Cheney, and Kinzinger, and McConnell, and Romney, etc. — hope he’ll be indicted, convicted in a kangaroo court by a heavily biased DC jury, and sent to prison. For not filling out the ‘required’ paperwork.
Kafkaesque and Orwellian and the same time.
FYI on the Conservative Treehouse they are reporting that the Trump team requested a special master the morning after the raid (as opposed to the almost 2 weeks reported above).
An honest FBI/DoJ would have promptly sealed the whole seized lot upon being told the defendant was going to request (and most probably would get) a neutral third party to look over the loot and return the things they’re not supposed to look at including attorney/client and obvious executive privilege material. That didn’t happen.
An honest FBI/DoJ upon receiving this order from the judge would promptly suspend all activity upon the material and return it all to a centralized point where it would be kept under seal until the resolution of the order, and so the special master will have everything in one place when he/she begins to sort through it and send the seized underwear back along with other “Why in the world did you take this?” stuff.
They won’t. And they won’t be punished for it either. Quite the contrary.
You are absolutely correct. Even Mary Hoover, who was no innocent by any means, must be keeping Toland awake by her constantly turning over in her grave.
Sunadance and the Conservative Outhouse are not a serious or credible source.
Maybe not but they referenced the point in the decision. If you don’t accept it doesn’t matter to me.
I enjoy their site and visit it frequently.
It says in the judge’s ruling that they asked for a special master on August 9. And it is not the judge’s claim, it is the federal government stating that they did. Is that not credible enough for you? I don’t read CT, but I went over there because I didn’t know this little piece of information and I was curious. Are you not curious? Rhetorical question.
CNN is not credible to me, the Washington Post is not credible to me. But if these places post real documents with real information in them, then whatever my opinion of the outlet is doesn’t matter.
Just in passing, but since the FBI/DOJ/regime does not seem to consider themselves bound in any way by the law or the Constitution; what consequences will there be if they ignore any terms of the injunction?
Subotai Bahadur
A sternly worded letter.
Possibly a $500 fine.
It depends whether they get caught. If they get caught they’re in big trouble. The judge would find the people responsible in contempt and bring charges against them.
You’re funny. (But yes, that’s the way it is supposed to work)
Wow, did the FISA judges do that when they falsified evidence to get a warrant? No, it got swept under the rug and all of the shitbags walked away scot free.
When a judge gives an order, she expects it to be obeyed. If she finds out it is not, she gets angry. And when she gets angry she has the power to do something about it.
Nobody on the FISA court got angry when it got out that the FBI lied to them to get 4 warrants to surveil Carter Page. In other words, they were complicit in the conspiracy to get Donald Trump.
An FBI lawyer who tampered with and modified evidence to get an (illegal) FISA surveillance warrant on a private citizen, which enabled the FBI to spy on a candidate for and an elected president, received what amounted to a slap on the wrist. He’s still an FBI employee and still has his law license.
And when the targeted private citizen sued his case was tossed out of court.
That’s just one example.
Whatever the theoretical potential legal consequences might be, we have seen what the actual consequences are when the effort targets Trump.
Again, that is not the same thing at all. He didn’t disobey a court order; had he done so the judge who gave that order would have come at him with full force.
It’s not the same thing. But it’s just as bad, and judges get just as angry.
“A Virginia judge has kicked a George Soros-funded prosecutor off a case involving potentially a dozen burglaries in multiple counties, saying the prosecutor’s office had concealed criminal records to “sell” a plea bargain.
Loudoun County circuit court judge James Plowman said the office of Commonwealth’s Attorney Buta Biberaj (D.) was “deliberately misleading the Court and the public” about “a possible 12 burglary crime spree spanning 4 counties over 10 days.” In a plea agreement, Biberaj’s office failed to note the offender had recently pleaded guilty to felonies and had pending charges and prior convictions as a minor, according to Plowman…
“The explanation highlights a lack of knowledge of the facts of the case or the ability to apply basic legal principals,” Plowman wrote in his order. “Biberaj and the Loudoun County Commonwealth’s Attorney’s Office is hereby REMOVED AND DISQUALIFIED from further prosecution as counsel of record in this matter.””
Biberaj instructed her office to tell the judge that the criminal, Kevin Enrique Valle, had committed five crimes (three misdemeanors and two low level felonies) over a few hours when he had gone on a ten day crime spree committing multiple felonies. As of June Biberaj has been hit with a formal bar complaint but it’s obviously not resolved yet.
Generally when attorneys make false statements to a judge the judge gets just as angry as they do when they disobey a court order. The fact that the FISA court didn’t is again a tell that they didn’t mind getting lied to.
https://freebeacon.com/courts/virginia-judge-kicks-soros-prosecutor-off-case-for-concealing-criminal-records/
Both the exclusionary rule and any derivative use (fruit of the poisonous tree) should apply to anything material obtained from the tainted general search warrant and potential planting of evidence, as the case may be. The government’s bad faith is apparent.
Patience. This is just the beginning.
So how is having a Trump appointed judge order a special master so unfair? The judge that signed the search warrant had in the past recused himself from cases involving Trump because he said he could not be objective with matters concerning Trump due to his opinion of him. The fact that he did not recuse himself this time even though he has not changed his opinion of Trump should automatically be a reason for a special master.
Why isn’t such an injunction automatic from the moment law enforcement seizes property pursuant to a warrant? Allowing a race with the judge has all kinds of perverse incentives.
Also, does anybody know the purported reason for the DoJ subpoena of Trump’s camera surveillance of the raid? The real reason, of course, is to prevent Trump from disclosing any unlawful or embarrassing conduct on the part of law enforcement during the raid.
That’s why they should have released that footage ASAP.
But holding it back does keep the FIB and DO”J” guessing…
Yep, there’s nothing like the Feds making a claim, only to have video refuting it. Releasing the video first allows them to sculpt lies around it.
A breath of fresh air. Judge Cannon hit the legal nail on the head. This ain’t the DC Circuit. The Leftist Lawfare Goons are wigging out.
Hilarious watching the left go nuts over this Trump appointed judge while completely ignoring the judge who signed the search warrant in the first place not being a fan of Trump.
The FBI/DOJ waited until that judge was available and they knew he would sign it without a problem. His later courtroom actions were a CYA for himself. I think the other judges, the non-magistrate judges, realized that this looks bad and they stepped in to deal with it.
Well, someone has to reign in the Gestapo.
Quis custodiet ipsos custodes?
This is the beginning of a brake on an out of control DOJ and FBI
It amazes me that Democrats forget that “Attorney-Client Privilege” thing when it’s someone they dislike.
I’ve seen them complain about search warrant teams going through the homes/personal items of Democrats who end up convicted and go to prison.
This only slows the investigation minimally, which gives Democrats/DOJ and excuse to wait till next year to try and abort Trump running again.
So, the judge who authorized the search was an Obama donor and that was good, but a judge being appointed by Trump is bad? Just trying to figure out the rules here.
All the right people are complaining about the decision. They are the “right people” because it just makes it easier to identify who isnt serious about law and order.
It Doesn’t Count When Democrats Do It
The reality is that every single document seized has already been copied and widely distributed. They have people combing through them in order to find something, anything, that they can use to indict President Trump. If they don’t find something, they will just make it up. Part of the agenda.
Meanwhile the same people have had access to Hunter’s laptop since 2019 and they are still ignoring everything on it.
And let’s not forget- Anthony Weiner’s laptop before that.
This is no way to run a show trial.
You’d think they’d have gotten better with all that practice.
Expect an appeal that will drag this out for 6 months while they selectively leak damaging material either real or fake.
The radical talking heads who are so bent out of shape about this excellent decision which puts a brake on an out of control DOJ and FBI obviously forget that judges who Trump appointed and who Democrats and Republicans voted for also refused to hear any evidence of fraud as to 2020. The radial talking heads only want results in their favor.